Author
Throughout 2022, the support offered by the European Union Agency for Asylum (EUAA)[1] to the Italian Asylum Authorities continued at different stages of the procedure.
Italy has received operational support by the EASO/EUAA since 2013. The 2022-2024 plan was amended in May 2022 to take into account the changes in the operational context in light of the invasion of Ukraine.[2]
Throughout 2022, the EUAA deployed 277 different experts in Italy,[3] mostly temporary agency workers (159), as well as 83 external experts. The majority of the experts deployed were reception expert officers (60), research officers (43), intermediate asylum second instance support experts (31), asylum second instance support expert officers (24), intermediate asylum registration experts (21), followed by other support staff (e.g. reception and info system officers, operations assistants, asylum information provision expert officers, vulnerability expert officers, quality assurance officers).[4]
As of 20 December 2022, there were still 191 EUAA experts present in Italy, mostly reception expert officers (45), intermediate asylum second instance support experts (30), intermediate asylum registration experts (20), and operations assistants (15).[5]
Application
According to Italian law, there is no formal timeframe for making an asylum application. The intention to make an asylum application may be expressed orally by the applicant in their language with the assistance of a linguistic-cultural mediator.[6] However, asylum seekers should make their application as soon as possible. Immigration legislation prescribes, as a general rule, a deadline of 8 days from arrival in Italy for migrants to present themselves to the authorities.[7]
The asylum application can be made either at the border police office or within the territory at the provincial Immigration Office (Ufficio immigrazione) of the Police (Questura), where fingerprinting and photographing (fotosegnalamento) are carried out. In case the asylum application is made at the border, the Border Police invites asylum seekers to present themselves at the Questura for formal registration. Police authorities cannot examine the merits of the asylum application. The law establishes that the lodging of the application should occur within 3 days from the expression of the will to apply – 6 days if the willingness is manifested at border – the time limit may be postponed up to 10 days in case of huge numbers.[8] In practice, however, these deadlines are rarely respected, and especially in big metropolitan areas such as Milan, Rome, and Naples, asylum seekers manage to lodge their applications only after some weeks or even a couple of months.
During the registration, the Questura asks the asylum seeker questions related to the Dublin Regulation and contacts the Dublin Unit of the Ministry of Interior to verify whether Italy is the Member State responsible for the examination of the asylum application. When there are doubts on the competence, under Dublin Regulation, the case is transmitted to the Dublin Unit and the person receives a permit that indicates “Dublin” or “richiesta asilo”. On the renewal of the permit, if the Dublin unit concludes for the Italian responsibility the person will get the request of asylum permit. If the Dublin Unit outcome is negative, the person will be notified the Dublin Unit negative decision.
After the lodging (verbalizzazione) of the application, if no issues regarding the application of the Dublin Regulation arise, or once they are solved, the Questura sends the formal registration form and the documents concerning the asylum application to the Territorial Commissions or sub-Commissions for International Protection located throughout the national territory, the only authorities competent for the substantive asylum interview.[9] The asylum seeker is then notified by the Questura of the interview date at the Territorial Commission.
Regular procedure
According to the Procedure Decree,[10] a member of the Territorial Commission should interview the applicant within 30 days; after having received the application and the Commission should decide on its result in the 3 following working days.
The decision shall be taken following a panel discussion between all members of the Commission. Should the Territorial Commission be unable to take a decision in the time limit, or in case it finds itself in need of new elements, the examination procedure should be concluded within six months of the lodging of the application.
However, the Territorial Commission may extend the time limit for a period not exceeding a further nine months, where:
(a) complex issues of fact and/or law are involved;
(b) a large number of asylum applications are made simultaneously;
(c) the delay can clearly be attributed to the failure of the applicant to comply with his or her obligations of cooperation.
By way of exception, in duly justified circumstances, the Territorial Commission may further exceed this time limit by three months where necessary in order to ensure an adequate and complete examination of the application for international protection.[11] In the light of the different possibilities of extension, the asylum procedure may last for a maximum period of 18 months.
According to ASGI’s experience, due to the large number of simultaneous applications, the time limits are generally not respected in practice, and the asylum seeker is generally not informed about the authorities exceeding the deadlines.
Prioritised and accelerated procedures
The Procedure Decree provides for an accelerated procedure and a prioritised procedure. The President of the Territorial Commission identifies the cases under the prioritised or accelerated procedure.[12]
Border procedure
With the 2018 reform, confirmed by the 2020 reform, the border procedure was established for applicants making an asylum application directly at the border or in transit areas, after having been apprehended for having evaded or attempting to evade border controls. In this case, the entire procedure can be carried out directly at the border or in the transit area.[13]
The reform introduced by L. 50 of 5 May 2023, which converted with amendments the DL 20/2023, allowed to carry out the border procedure for people making the application at the border or transit areas in case they come from safe countries of origin.[14]
Border and transit areas for the accelerated examination of asylum applications were identified by ministerial decree of 5 August 2019,[15] and include areas in the provinces of Trieste and Gorizia (Balkan border); the provinces of Crotone, Cosenza, Matera, Lecce, Brindisi (southern coastal area); two areas in Sicily, one including the Provinces of Caltanissetta, Ragusa, Syracuse, Catania, Messina, the other including Trapani and Agrigento Provinces; and the Metropolitan city area of Cagliari (South Sardinia). The decree also instituted sections of the territorial commissions in charge to operate in these areas.
A list of safe countries of origin has been adopted by decree of the Minister of Foreign Affairs on 4 October 2019, in agreement with the Ministry of Interior and the Ministry of Justice. It included: Albania, Algeria, Bosnia and Herzegovina, Cape Verde, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Senegal, Serbia, Tunisia and Ukraine.
Through the Decree published on 11 March 2022, the application to Ukraine has been suspended until 31 December 2022.[16] By decree of the Ministry of Foreign Affairs and International Cooperation of 17 March 2023, published in the Official Gazette on 25 March 2023,[17] the government updated the list of safe countries. With the decree, the government updated the list of safe countries by including the Gambia, Georgia, Ivory Coast and Nigeria and removed Ukraine. The safe countries procedure does not apply to applications submitted by citizens from these last four countries before the entry into force of the decree, entered into force on 9 April 2023.
Appeal
Asylum seekers can appeal a negative decision issued by the Territorial Commission within 30 days before the competent Civil Court. Following Decree Law 13/2017, there are specialised court sections competent for examining asylum appeals.
In case of a negative decision on the merits, the applicant is recognized the right to stay on the national territory pending the appeal.
Applicants placed in detention facilities and applicants whose application is examined under the accelerated procedure, on the basis of Article 28-bis of the Procedure Decree, have only 15 days to lodge an appeal,[18] and they can be recognized the right to stay pending the appeal only upon request to the court.
After the entry into force of Decree Law 13/2017, the decision of the civil court (first appeal) can only be challenged in law before the Court of Cassation (final appeal) within 30 days. Before the reform, the decision of the civil court could also be appealed in fact and law in front of the Court of Appeal, within 30 days of the notification of the decision.
Even if, according to rules introduced in 2017, proceedings before the civil courts should last a maximum of 4 months,[19] and 6 months before the Court of Cassation, the actual duration largely exceeds these terms, in some cases even tenfold.[20]
Asylum and return
In case a negative decision is notified to an asylum seeker, it is not directly linked to a return decision. In most cases, rejected asylum seekers have the right to submit an appeal within 15 or 30 days and, when the appeal has not automatic suspensive effect, they have the right to stay until the Court issues a decision on the suspension. After that, people could receive an expulsion order if they do not attend the appointment set by the competent Questura, during which they are requested to provide evidence of having submitted an appeal.
[1] It should be noted that Regulation 2021/2023 entered into force on 19 January 2022, transforming EASO into the EU Agency for Asylum (EUAA).
[2] EUAA, Operational Plan 2022-2024 agreed by the European Union Agency for Asylum and Italy, May 2022, available at: https://bit.ly/3yqqMbs.
[3] EUAA personnel numbers do not include deployed interpreters by the EUAA in support of asylum and reception activities.
[4] Information provided by the EUAA, 28 February 2023. In the figures above, the same persons may have been included under different profiles, if a change of profile took place in the course of 2022.
[5] Information provided by the EUAA, 28 February 2023.
[6] Article 3(1) PD 21/2015.
[7] Article 3(2) PD 21/2015.
[8] Art. 26 Procedure Decree.
[9] Article 4 Procedure Decree, as amended by LD 220/2017.
[10] Article 27 Procedure Decree.
[11] Article 27 Procedure Decree.
[12] Article 28(1) Procedure Decree.
[13] Article 28-bis(2) (b)) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020
[14] Article 28 bis (b bis) introduced by L. 50/2023.
[15] Available at: https://bit.ly/3CJxWcm.
[16] Inter-ministerial Decree of 9 March 2022, published on GU n. 59 of 11.3.2022, Article 1, available at: https://bit.ly/3w3ViHW.
[17] Ministry of Foreign Affairs Decree of 17 March 2023, published on GU n. 72 of 25.03.2023, available at http://bit.ly/3KIFemk.
[18] Article 19(3) LD 150/2011.
[19] Article 35 bis (13) (14) (15) Procedure Decree
[20] See, in this sense and for an analysis of the functioning of the specialised court sections, L. Perilli, Le sezioni specializzate in materia di immigrazione a cinque anni dalla loro istituzione. Un’indagine sul campo, in Diritto Immigrazione e Cittadinanza, n. 1/2023, available in Italian at: https://bit.ly/43fq6TS.